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  1. #1
    Senior Member patbrunz's Avatar
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    Constitution Doesn’t Mandate Birthright Citizenship

    Constitution Doesn’t Mandate Birthright Citizenship


    Parts of Donald Trump’s immigration plan may raise serious constitutional questions, but the part that launched a media firestorm—ending birthright citizenship for the children of illegal aliens—does not.

    The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal.

    Media commentators have gotten this issue dead wrong. Fox News’s Judge Andrew Napolitano says the Fourteenth Amendment is “very clear” that its Citizenship Clause commands that any child born in America is automatically an American citizen.

    That’s not the law. It has never been the law.

    Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.

    How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional?

    No. The Citizenship Clause of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Today’s debate turns on the six words, “and subject to the jurisdiction thereof.”

    As captured in the movie Lincoln, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and resolve of Republican President Abraham Lincoln that the proposed amendment passed Congress in 1865, sending it to the states for ratification.

    In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality.

    The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

    That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment.

    In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens.

    That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has.

    So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum.
    Media confusion on this issue is puzzling, because the greatest legal minds in this country have discussed the issue. (Just none of them were put on camera to explain it.) Scholars including Dr. John Eastman of Chapman University, and even Attorney General Edwin Meese—the godfather of constitutional conservatism in the law—reject the myth of birthright citizenship.

    Nor is rejection of birthright citizenship limited to conservatives. Judge Richard Posner—a prolific scholar who, despite being appointed by Ronald Reagan, is a liberal judicial activist—wrote in 2003 in Ofoji v. Ashcroft:
    We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship….
    A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it….
    The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.

    It is another question as to whether Congress could strip citizenship from the children of illegals who already have it. If Congress could do that, then it could also strip citizenship from the many millions of foreigners who came to the United States legally and went through the lawful process to become Americans. There is no court precedent for that, and the congressional and ratification debates from the Fourteenth Amendment do not reveal a clear answer.

    Trump could rescind President Barack Obama’s executive amnesty, but that executive order did not grant anyone citizenship, and it would be a steep uphill climb in court to try to take someone’s citizenship away. And if the children already here are American citizens, then they could never be deported.

    Some other parts of Trump’s plan face even longer odds. The Due Process Clause of the Fifth Amendment to the Bill of Rights applies to all “persons,” not just citizens. And the courts have always held that due process requires any foreigner to be given a “meaningful hearing” in court before being deported. That would certainly impact the pace of deportation.

    Donald Trump’s position on immigration has changed drastically from his previous positions, just like his past support for socialized healthcare and abortion. He has not yet explained why he changed his position on immigration, and some voters do not trust that he sincerely holds to his current campaign positions.

    But none of that changes the legality of his immigration proposal. While parts of it may face legal challenges, denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment.

    http://www.breitbart.com/big-governm..._medium=social
    Last edited by patbrunz; 08-18-2015 at 11:50 PM.
    All that is necessary for evil to succeed is that good men do nothing. -Edmund Burke

  2. #2
    Senior Member Judy's Avatar
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    Some other parts of Trump’s plan face even longer odds. The Due Process Clause of the Fifth Amendment to the Bill of Rights applies to all “persons,” not just citizens. And the courts have always held that due process requires any foreigner to be given a “meaningful hearing” in court before being deported. That would certainly impact the pace of deportation.
    There is nothing about due process that would impact the pace of deportation, you can not be obligated to provide a "meaningful" or long hearing if there is nothing valid to hear. No papers, no stay = Deported and Out You Go, Families Intact, No Child Left Behind. Yes, I realize that's bad business for immigration lawyers, but immigration lawyers are like income tax preparers, we shouldn't need either one in the United States.
    Last edited by Judy; 08-19-2015 at 06:59 AM.
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    Senior Member JohnDoe2's Avatar
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    NO AMNESTY

    Don't reward the criminal actions of millions of illegal aliens by giving them citizenship.


    Sign in and post comments here.

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  4. #4
    Senior Member Judy's Avatar
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    The problem on this issue is that lawyers, media pundits, politicians, authors, "scholars", and many others who wish to expound on the issue of anchor baby citizenship haven't actually bothered to read either the 14th Amendment or the US Code 8, Chapter 12, Subchapter III, Part 1, Section 1401.Section 1401. There is no difference between the language of the 14th Amendment and US law regarding citizenship by birth. Both the 14th Amendment and the US Code pertaining to the US Immigration and Nationality Act of 1952 require that the person born here be subject to the jurisdiction of the United States to be a citizen by birth.

    So to all the stupid people who claim that "if you're born here, you're a citizen, period" are the fools and idiots who have and are continuing to destroy our nation, including such morons as Bill O'Reilly at Fox News and States who hand out certified birth certificates to children of illegal aliens and ignoramuses in the Federal Government who hand out Social Security Numbers and Passports and Medicaid and Food Stamps to children of illegal aliens.

    Illegal aliens are not subject to the jurisdiction of the United States nor are their children which is why neither illegal alliens nor their children are citizens of the United States.

    We don't need to "nullify" what isn't. Children of illegal aliens are not citizens, they do not have citizenship, because they are not citizens under the 14th Amendment or US Law. So, what needs to be done is the US Government and all 50 States need to abide the Constitution and US Law. That means no certified birth certificate for children of illegal aliens. That means no state or federal benefits for children of illegal aliens. That means no Passports for children of illegal aliens. That means no Social Security numbers for children of illegal aliens. No voting rights for children of illegal aliens. No rights or privileges of US nationals/citizens shall be conveyed to people who are not eligible and that includes anchor babies who are NOT citizens of the United States, as a matter of pure law.

    This does not require an Amendment to the US Constitution. It doesn't even require a new law to stop the illegal practice, although I believe a law is in the best interest of the United States to stop the idiots, fools and morons from handing out citizenship privileges and rights to people who are not entitled to them. All federal and state agencies are already subject to the US Constitution and federal immigration law that already prohibit birthright citizenship to people who are not subject to the jurisdiction of the United States, which includes first and foremost illegal aliens in our country in violation of US immigration law. If the law didn't apply to illegal aliens first and foremost it would not apply to anyone, the words would have no meaning and be useless. But of course the words have meaning and they are there for a very specific purpose which is to restrict automatic birthright citizenship to children of natural born and naturalized US citizens, children of freed slaves who were under both the jurisdiction and protection of the United States, and because of the Wong Kim Ark Supreme Court Ruling, children of legal immigrants.

    https://www.law.cornell.edu/uscode/text/8/1401

    U.S. Code › Title 8 › Chapter 12 › Subchapter III › Part I › § 1401

    8 U.S. Code § 1401 - Nationals and citizens of United States at birth

    Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

    US Code
    Notes
    Authorities (CFR)

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    US LAW:

    8 U.S. Code § 1401 - Nationals and citizens of United States at birth

    The following shall be nationals and citizens of the United States at birth:

    (a) a person born in the United States, and subject to the jurisdiction thereof;

    (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

    (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

    (d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

    (e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

    (f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

    (A) honorably serving with the Armed Forces of the United States, or
    (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

    (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
    Under our existing Constitution and Federal Law, neither the federal government nor any state has the authority to issue any document or right, privilege or immunity that is reserved for citizens or legal residents, including any document that would convey a right of automatic birthright citizenship to their children. That includes passports, Social Security numbers, drivers licenses, voter registration, state issued certified birth certificates, public funded benefits, and so much more. All 50 States need to be advised by the federal government that it will no longer recognize a state birth certificate issued to children of illegal aliens for the purposes of obtaining Social Security numbers, passports or federally funded benefits reserved for citizens and legal permanent residents. It's just that simple.

    What do we do with illegal aliens who were born here who wrongfully think they're citizens when they aren't? They're deported until they meet the conditions of re-entry and naturalization, the same as legal immigrants.

    Who in their right mind could have an emotional or legal objection to that?!

    You hear these stupid people claim "but this is through no fault of their own". So what? That is irrelevant. What is relevant is that American Citizens are not responsible for these people because they are here through no fault of ours, they are not our responsibility, we are not required to use our money and life-time earnings struggling to attain our "DREAMS" or national debt burdening our posterity to fund theirs or allow our nation to ever be governed by or have elections tilted or policies influenced or our tax coffers robbed by people who aren't supposed to be in our country to begin with.
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  5. #5
    Super Moderator Newmexican's Avatar
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    Thread locked for further comments Duplicate of:

    http://www.alipac.us/f12/constitutio...enship-322261/

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